Let’s peer into a magic crystal ball at what the future may hold for Arizona. (Aside from punishing drought and venomous lizards.)
We’re going to make a prediction here: Arizona’s about to get a major victory for marriage equality. It’s going to be strongly-written, unequivocal, and will build upon recent victories in neighboring states.
How do we know? Well, because last week US District Judge John Sedwick issued a minor ruling, buried in which are some extremely telling hints at a major decision soon to come.
Sedwick is overseeing the marriage litigation in Arizona, which has been proceeding at the usual pace for these sorts of cases. But last month, there was a major shift: one of the plaintiffs passed away, which introduced all kinds of time-sensitive concerns about death certificates and benefits. Sedwick needed to rule on those particular issues right away, rather than taking his time to write a thorough evaluation of the state’s marriage ban.
Sedwick’s ruling is pretty narrow, and applies to just one couple. But the route he takes illuminates exactly how he’s thinking, and it indicates that he’s about to hand us a pretty major win.
First of all, he makes short work of the state’s claim that the Baker case prevents him from issuing a ruling. Sedwick points out that Baker happened 42 years ago, and that the Windsor decision “eliminates any uncertainty” that Baker can be safely disregarded.
Then he turns his attention to the federal courts that have upheld marriage bans. There aren’t many, he says, and “none of these decisions are persuasive.” That’s another indication that he sees no reason to uphold Arizona’s ban.
Sedwick also has no time for the state’s claim that its marriage ban does not discriminate on the basis of sexual orientation. “This argument lacks merit,” he scoffs, “the laws do discriminate.”
Another obvious signal.
Importantly, he uses the term “fundamental right” in reference to marriage. That’s a big deal, since it’s a lot easier to make a Due Process and Equal Protection Clause claim when fundamental rights are at stake. This isn’t just a hint that he’ll rule in favor of gay and lesbian couples. It’s a signal that he’ll rule strongly, using the language that our side needs in order to make a compelling case on appeal.
He concludes that section of the ruling by writing that the plaintiff “is likely to prevail on the merits.” Hooray! He basically just said, “everyone knows you guys are going to win.”
So what happens next? We sit back and wait for the Arizona decision, which could come at any moment. Then the losing side (which will probably not be us) will probably appeal to the Ninth Circuit.
That’s where things get complicated. The Ninth Circuit already has three marriage cases awaiting a decision, so the Arizona case will be playing catchup. The three-state decision could come at any moment — maybe before the Arizona ruling, or maybe after — but either way, there’s a strong consensus in the Ninth Circuit that marriage bans need to go.